appeals against formal warnings disciplinary sanctions andor dismissal v0e 081210

Appeals Against Formal Warnings, Disciplinary

Sanctions and /or Dismissal Policy

Policy type: Trust

Policy reference number: (to be obtained from the Policy Co-ordinator)

Policy classification: Employment

Author: Eleri Lloyd, HR Officer

Policy lead: Karen Wright, Associate Director of Workforce and OD

Executive lead: TBC

Date: 1st November 2010 Version: V0e

Publication/ Distribution:

Public Health Wales (Intranet)

Review Date: April 2013

Approval date: TBC

Approving body: Trust Board

Purpose and Summary of Document:

The opportunity to appeal against a formal warning, disciplinary sanction or to terminate a contract of employment is an essential part of the process of natural justice and a statutory right in law.

This Policy sets the grounds on which an appeal may be made by an employee, the responsibilities of the Trust and the employee when an appeal has been submitted and the process to be followed.

Public Health Wales Appeals Against Formal Warnings, Disciplinary Sanctions and / or Dismissal Policy

This policy complies fully with the Employment Rights Act (2008) and the ACAS Disciplinary and Grievance Procedures Code of Practice (April 2009).

This policy clarifies and consolidates the arrangements, in respect of appeals which may be submitted as a result of the management of the following Trust policies; Trust Disciplinary Policy, Trust Managing Sickness Absence Policy, Trust Managing Performance Policy and Trust Probationary Period Policy and Procedure.

It should be noted that the prescribed timescales for the submission and hearing of such appeals will be detailed in the relevant Trust policy.

Intended audience: All staff employed by Public Health Wales

Interdependencies with other policies:

Trust Sickness Absence Policy

Trust Disciplinary Policy

Trust Managing Performance Policy

Trust Probationary Period Policy and Procedure

Date: 8th December 2010 Version: v0e Page: 2 of 17

Public Health Wales Appeals Against Formal Warnings, Disciplinary Sanctions and / Dismissals Policy

Contents

1. POLICY SUMMARY AND INTRODUCTION......................5

2.POLICY AIMS AND OBJECTIVES……………………....……...5

3. SCOPE OF THE POLICY..............................................6

4.LEGISLATIVE AND NATIONAL INITIATIVES……………...6

5. DEFINITION OF APPEAL.............................................6

6 RESPONSIBILITIES...................................................76.1 The Appellent....................................................................................76.2 Managers...........................................................................................76.3 Role of Trade Union Representative......................................76.4 Role of the Human Resources Department............................8

7. SUBMISSION OF APPEALS AND TIMESCALES ……………97.1 Appeals during an employees probationary period…………………….….…..97.2 Appeal Against Formal Warnings Due to Performance Issues……..…...97.3 Appeal against oral warning...…………………………………………………………..107.4 Appeals against written, final written warning and dismissals ………..10 7.4.1 Appeals Panel…………………………………………………………………………….11 7.5 Appeal Against Dismissal Due to Sickness Absence…………………...…..117.6 Appeal Against Dismissal Due to Performance Issues .…..……………..127.7 Date of Receipt………………………………….……………………….……………………..12

8. THE APPEAL HEARING8.1 Timescales to follow.........................................................................128.2 Submission of papers .......................................................................128.3 Those present at the hearing…........................................................138.4 Responsibilities within the hearing ..................................................13 8.4.1 Chairperson...........................................................................13

Date: 8th December 2010 Version: V0e Page: 3 of 17


8.4.2 Secretary....................................................................................148.5 The Hearing process.........................................................................14

9 PROCESS FOLLOWING THE APPEAL HEARING..........16

10. Training…………………….……………………………………..17

11. Communication to staff.……………………………………..17

12. Monitoring and auditing……………………………………..17

13. Review……………………………………………………………..18

POLICY SUMMARY AND INTRODUCTION

Public Health Wales endeavours to promote good employment relations between the Trust and all its employees. Consequently it attaches the greatest importance to the principle of fair and consistent treatment of all employees.

The policy recognises that where disciplinary action is taken, and results in the issue of a sanction, an employee may believe that the sanction or action was inappropriate or unjust. Therefore, in such instances it is important that the employee is given a right to appeal against the decision.Any disciplinary action taken against an employee will be undertaken in accordance with the provisions contained in the Disciplinary Policy and Rules. As such, a disciplinary matter may result in the issue of an oral, a formal written or a final written warning or dismissal.

The policy also recognised that other Public Health Wales employment policies and the associated procedures may result in the issue of a formal warning or termination of an employee’s employment on capability related grounds. This may be in respect of appeals which may be submitted as a result of the management of the following Trust policies; Trust Disciplinary Policy, Trust Managing Sickness Absence Policy, Trust Managing Performance Policy and Trust Probationary Period Policy and Procedure. In those cases, this appeal process will be applied, utilising the timescales as prescribed in the relevant employment policy.

1. POLICY AIMS AND OBJECTIVES



This purpose of this policy is to ensure:

compliance with the Employment Rights Act (2008) and the ACAS Code of Practice, ‘Discipline and Grievances at Work’ (April 2009);

employees can submit an appeal without fear of victimisation by management;

all appeals are dealt with promptly, fairly and consistently, using the following procedure;

there are no unreasonable delays in respect of holding appeal hearings and communicating the decision;

the timing and location of hearings are reasonable and accessible;

that should a disabled employee or former employee be involved in this process, Public Health Wales and the individual will work together to identify any reasonable adjustments, to ensure the appellant is not disadvantaged in any way;

other access issues, including the need for linguistic support will be addressed, to ensure that all appellants are able to fully participate in the process; and

that all employees are treated in a manner that complies with equality and diversity legislation, principles and practice.

2. SCOPE OF THE POLICY

The Policy will apply to all employees of Public Health Wales for matters relating to appeals in respect of disciplinary warnings and dismissals.

All appeals will be arranged through the office of the Director of Workforce and OD and all correspondence should be addressed to the Director of Workforce and OD (unless otherwise stated in section 7), unless the case relates to a member of HR staff, in which case the advice of the Chief Executive will be sought.

Where an appeal has been submitted, an Appeal Panel will be formed for that purpose.

3. LEGISLATIVE AND NATIONAL INITIATIVES

This policy complies with the Employment Rights Act (2008) and the ACAS Code of Practice, ‘Discipline and Grievances at Work’ (April 2009);



4. DEFINITION OF APPEAL

An appeal may be submitted by an employee or their trade union representative on their behalf, on any number of grounds, for instance new evidence coming to light, a belief that due process was not followed, undue severity or inconsistency of the disciplinary sanction / action, formal warnings or dismissal.

The appeal hearing may be to review the disciplinary sanction / action or formal warnings and the process followed at the original hearing, depending on the grounds of the appeal.

An appeal hearing may not be used by management as an opportunity to increase the original sanction, as such an action would deter others from invoking their right of appeal. The purpose of the appeal is therefore, to consider the information, evidence and facts surrounding the case and to conclude whether the original decision was reasonable and fair in all of the circumstances.

It is important that appeals are submitted and are arranged to be heard as quickly as possible, taking into account the policy timescales and the need for both parties to fully prepare for the hearing.

5. RESPONSIBILITIES6.1 The Appellant

The appellant is required to set out in writing the reasons for their appeal and an indication of the redress sought. The letter of appeal must indicate whether or not the appellant wishes to be accompanied at the hearing and if so by whom.

The appellant must take all reasonable steps to attend the appeal hearing. Where there is an unavoidable reason as to why the employee cannot attend the arranged appeal hearing, one alternative date will be rearranged by the Trust.

Should an appellant be required to attend an appeal hearing outside of their normal working hours and they are employed by the Trust, time off in lieu will be granted. If this is not possible, payment will be made at their standard hourly rate.

6.2 Managers



The manager who has undertaking the role of the disciplinary or dismissing officer, is responsible for ensuring that an employee is made aware of their right to appeal against their disciplinary sanction or dismissal. The manager in such circumstances must also ensure that the employee is informed of the process and timescales for submitting their written appeal. 6.3 Trade Union or Workplace Representatives

An appellant has a statutory right to be accompanied when they attend an Appeal Hearing. The appellant may choose to be accompanied by a trade union representative or a work place colleague. It should be noted that where an employee’s chosen representative has been involved in the circumstances surround the case, or it is believed that their presence may prejudice the hearing, they will not be permitted to participate in the hearing in this capacity. In such circumstances the employee will be asked to find an alternative representative.

During an appeal hearing, the appellant’s representative will be permitted to address the hearing, to:

• put the appellant’s case forward;• sum up the appellant’s case;• respond on the appellant’s behalf to any view expressed at the hearing; and ask questions to any witnesses or the management representative on

behalf of the appellant.

The representative may also confer with the appellant during the hearing. The representative may ask for the panel to be adjourned should they wish to confer with the appellant in private. In such circumstances, a private room will be made available to them, if this is practicable in the circumstances.

The representative will not be permitted to answer questions on the appellant’s behalf, to address the hearing if the appellant does not wish it, or to prevent the management representative from explaining their case.

Trade union representatives are required to make their members aware of their right of appeal and provide them with appropriate advice and support, should they wish to submit an appeal on relevant grounds against a disciplinary sanction or dismissal.

6.4 Human Resources Managers and Officer



The Human Resources function is required to ensure that all managers involved in disciplinary hearings are aware of this policy and the requirement to formally inform employees of their right of appeal, the timescale for doing so and the process to be followed.

The Human Resources manager or officer who has provided support to the disciplinary / dismissal officer, during the disciplinary hearing, will be asked to assist them to prepare their management statement of case and to attend the Appeal Hearing, as appropriate, to provide the management representative with appropriate advice and support

An Assistant Human Resources Officer / Advisor may be present at the Appeal Hearing to take notes of the proceedings.

A nominated Human Resources Manager or Officer will be required to attend the Appeal Panel, to undertake the role of Human Resources Advisor to the Appeal Panel.

The Human Resources Advisor will also be permitted to ask questions of the appellant and or their representative, the disciplinary / dismissing officer and the Human Resource Manager / Officer who provided them with support during the original hearing and any witnesses. This role is essential to ensure that the Appeal Panel has all available information to be able to make an informed decision and to ensure that due process has been followed.

6. SUBMISSION OF APPEALS AND TIMESCALES6.1. Appeal During a Probationary Period

Employees who have been disciplined, received formal warning or dismissed under the policies highlighted in the introduction during their probationary period or extended probationary period will be allowed the right of appeal against disciplinary action, and/or dismissal, to the officer to whom the disciplining/dismissing officer is responsible.

The appeal must be submitted within 21 calendar days of the date of receipt of the written confirmation of disciplinary action / formal warning / dismissal. An employee who receives a disciplinary sanction / formal warning or is dismissed must be informed of their right of appeal and the arrangements for making such an appeal, including identification of the officer to whom the appeal should be made to.



The appeal panel will normally consist of the officer to whom the disciplining/dismissing officer reports to, or someone more senior, if appropriate, and a Human Resources Manager/Officer who has previously not been directly involved in the circumstances leading to the disciplinary sanction / formal warning or dismissal.

6.2. Appeal Against Formal Warning Due to Performance Issues

An employee who is issued with a formal warning on the grounds of performance must be informed in writing of their right of appeal and the arrangements for making such an appeal, including, identification of the officer to whom the appeal should be made to.

An appeal against a formal warning on the grounds of performance should be submitted in writing to the identified officer. This may be the officer to whom the disciplining officer reports to or someone more senior, if appropriate. The appeal must be submitted to the relevant officer, within 21 calendar days of the date of receipt of the written confirmation of the disciplinary sanction.

The appeal panel will normally consist of the officer to whom the disciplining officer reports to, or someone more senior, if appropriate, and a Human Resources Manager/Officer who has previously not been directly involved in the circumstances leading to the disciplinary sanction or dismissal.

6.3. Appeal Against an Oral Disciplinary warning

An employee who receives an oral disciplinary warning must be informed in writing of their right of appeal and the arrangements for making such an appeal, including, identification of the officer to whom the appeal should be made to.

An appeal against an oral disciplinary warning should be submitted in writing to the identified officer. This may be the officer to whom the disciplining officer reports to or someone more senior, if appropriate. The appeal must be submitted to the relevant officer, within 21 calendar days of the date of receipt of the written confirmation of the disciplinary sanction.

The appeal panel will normally consist of the officer to whom the disciplining officer reports to, or someone more senior, if appropriate, and a



Human Resources Manager/Officer who has previously not been directly involved in the circumstances leading to the disciplinary sanction or dismissal.

6.4. Appeal Against a Written, Final Written Disciplinary Warning and Dismissal

An employee who wishes to appeal against their disciplinary sanction / dismissal, must submit their written appeal, including the reasons for their appeal, with the Director of Workforce and OD within 21 calendar days of the date of receipt of the written confirmation of their disciplinary action / dismissal.

An employee who receives a written, final written disciplinary warning or dismissal must be informed of their right of appeal and the arrangements for making such an appeal, including identification of the officer to whom the appeal should be made to.

6.4.1. Appeals Panel

The Appeal Panel will normally consist of one senior manager, one member of the Trust Board and one Non Executive Director. If deemed necessary, at least one member of the panel should have specialist knowledge of the field of work of the employee, where this is relevant to the case. Where this is not possible, in cases of an appeal against dismissal, the Panel shall, at the request of the appellant or their representative, appoint an internal advisor who is experienced in the particular discipline of the employee, and who has not been directly involved in the circumstances leading to the disciplinary sanction or dismissal.

The internal advisor may only advise the Panel on any matter arising during the course of the hearing, which they feel may be related to the professional conduct or professional competence of the employee.

The Appeal Panel shall not include any member who has been directly involved in the circumstances leading to the disciplinary sanction or dismissal.

6.5. Appeal Against Dismissal Due to Sickness Absence

An employee whose employment is terminated on the grounds of sickness absence must be informed in writing of their right of appeal and the



arrangements for making such an appeal, including, identification of the officer to whom the appeal should be made to.

An appeal against termination of employment on sickness absence grounds should be submitted in writing to the Director of Workforce and OD within 14 calendar days of receipt of confirmation of the letter of dismissal being sent.

The appeal panel will be as defined within Section 7.4.1 of this policy.

6.6. Appeal Against Dismissal Due to Performance Issues

An employee who’s employment is terminated on the grounds of performance or offered redeployment as an alternative to dismissal must be informed in writing of their right of appeal and the arrangements for making such an appeal, including, identification of the officer to whom the appeal should be made to.

An appeal in respect of a performance issues should be submitted in writing to the Director of Workforce and OD within 21 calendar days of receipt of written confirmation of the warning, offer of redeployment or dismissal.

The appeal panel will be as defined within Section 7.4.1 of this policy.

6.7. Date of Receipt

Where an employee has a right of appeal, the letter communicating this information will be sent via ‘recorded delivery’ post. Date of receipt will be the date on which the employee signs and takes receipt of the letter.

Where this is disputed Public Health Wales will contact the post office to confirm the date on which the letter was signed for and to seek confirmation regarding who signed and took receipt of the letter.

8. THE APPEAL HEARING

8.1 TIME SCALES TO FOLLOW

The appeal hearing should take place within eight weeks of the date of receipt of the appeal by the Director of Workforce and OD. By the mutual agreement of both parties, this period may be extended for a further period



of up to eight weeks. The appellant shall be given in writing at least fourteen calendar days notice of the date of the hearing.

8.2 Submission of papers

Should the management representative and / or the appellant wish to submit a written ‘Statement of Case’ and / or papers to support their case, they must do so at least 10 working days in advance of the hearing date.

The statement of case should be submitted to the Director of Workforce and OD and must set out;

the grounds on which the case is based; any additional evidence that will be relied on during the appeal

hearing; a chronological breakdown of the events leading up to the appeal;

and witness statements and details of the witnesses they wish to call.

No other written evidence / information may be submitted to the Appeal Panel on the day of the hearing, unless all parties agree. Should both parties fail to agree to the submission of late evidence / information, it will be for the Appeal Panel to consider the documentation, to determine its relevance to the case and the necessity of its inclusion, to ensure the process of natural justice is adhered to.

If the prescribed timescale for the submission of statement of case papers is not complied with, the Chairperson of the Appeal Panel may decide whether or not the appeal can continue or be rearranged for a later date.

8.3 Those present at the hearing

Those required to be present throughout the hearing shall be management's presenting officer i.e. the Disciplining / Dismissing Officer, the Human Resources Officer /Manager involved in the original disciplinary hearing, the appellant and their representative (if they have chosen to be accompanied).

8.4 Responsibilities within the hearing

8.4.1 Chairperson



Before the commencement of the hearing the Appeal Panel shall designate a Chairperson who will preside over the conduct of the appeal. Where the appeal panel consists of one manager and the Human Resources Manager/Officer, the manager will be the designated Chairperson.

8.4.2 Secretary

The Chairperson shall nominate the HR Advisor to act as Secretary to the Panel during the hearing. The role of the Secretary shall be to advise the members of the Panel on:-

The appropriate conduct of the hearing; The relevant regulations relating to terms and conditions of service,

employment legislation, case law etc., where appropriate; Record the significant points made at the hearing; and Record the outcome(s) and ensure that the appropriate letter is

prepared for the Chairperson to sign and sent to the appellant, within the agreed timescales.

8.5 The Hearing Process

The order of the appeal hearing shall be observed as follows:

8.5.1 The Appeal Panel, with the Secretary to the Panel, the note taker and, where appropriate the internal advisor shall be in attendance throughout the appeal hearing. The Chairperson will undertake introductions and confirm the following hearing process.

8.5.2 The disciplinary / dismissing officer and / or the human resources officer / manager who dealt with the original disciplinary / dismissal panel, (the management representatives) shall state the Trust’s case in the presence of the appellant and their representative. They may also call witnesses, as previously advised.

8.5.3 The appellant or their representative will be given an opportunity to comment on and ask questions of the management representatives and their witnesses.

8.5.4 The members of the Appeal Panel and the HR Advisor shall have the opportunity to comment on and ask questions of the management representatives and their witnesses.



8.5.5 The management representatives shall have the opportunity to re-examine their witnesses on any matter referred to in their examination, by members of the Appeal Panel, the HR Advisor, the appellant or their representative.

8.5.6 Management’s witness shall not attend the hearing, prior to them being called to provide their witness statement. Witnesses will withdraw once they have provided their evidence and answered questions from all parties.

8.5.7 The appellant or their representative shall present their case in the presence of the management representatives. They may also call witnesses, as previously advised.

8.5.8 The management representatives shall have the opportunity to comment on and ask questions of the appellant, their representative and their witnesses.

8.5.9 The members of the Appeal Panel and the HR Advisor shall have an opportunity to comment on and ask questions of the appellant, their representative and their witnesses.

8.5.10 The appellant or their representative shall have the opportunity to re-examine their witnesses on any matter referred to in their examination by members of the Appeal Panel, the HR Advisor or the management representatives.

8.5.11 The appellant’s witness shall not attend the hearing, prior to them being called to provide their witness statement. Witnesses will withdraw once they have provided their evidence and answered questions from all parties.

8.5.12 The management representatives and the appellant or their representative will be given an opportunity to sum up their case, if they so wish. The appellant or their representative will be given the opportunity to choose whether they sum up their case first or last.

8.5.13 In their summing up neither party may introduce any new matters or evidence.

8.5.14 Nothing in the foregoing procedure will prevent the Appeal Panel members from inviting either party to clarify or amplify any



statement which they may have made, or from asking them any other relevant questions, at any time during the hearing.

8.5.15 The Appeal Panel may at its discretion adjourn the appeal, in order that further evidence may be produced by either party to the appeal, or for any other reason.

8.5.16 Following summing up, the management representatives, the appellant and their representative will be asked to withdraw by the Appeal Panel.

8.5.17 The Appeal Panel, with the Secretary to the Panel, the note taker and where appropriate the internal advisor shall deliberate in private, only recalling both parties should they need to clarify points of uncertainty on evidence already given. If recall is necessary both parties shall return to address the point giving rise to doubt.

8.5.18 The Appeal Panel shall consider the Trust’s case and the appellant’s case and make an informed decision.

8.5.19 In the case of disciplinary sanction / dismissal appeals, no statements of previous acts of misconduct by the employee, or the issue of a formal warning, or warnings unrelated to the alleged offence(s) on which the disciplinary sanction / dismissal is based, will be made known to the Appeal Panel.

9. PROCESS FOLLOWING THE APPEAL HEARING

Should the Appeal Panel believe that they will be able to make a decision on the day of the hearing, both parties will be asked to wait outside and they will be called back into the hearing, to be advised of the outcome.

Should the Appeal Panel believe that they will be unable to make a decision on the day of the hearing, both parties will be advised. In such circumstances the Chairperson will provide both parties of a timescale in which the decision will be made and communicated.

The Chairperson of the Appeal Panel will be required to communicate the decision to the employee in writing, without unreasonable delay. The written confirmation will normally be provided within 7 calendar days of the appeal hearing.



The outcome of the appeal hearing will be final and will conclude the appeal procedure.

The outcome of the appeal panel will be reported to the Trust Board for noting.

Feedback will be provided to the management representatives by the Secretary to the Appeal Panel upon request.

A record of the appeal hearing, including notes of the meeting and any evidence submitted, will be kept in the employee’s personnel file for a period of one year, following the date of the decision letter. After this time, all notes of hearing and documentary evidence will be destroyed. A record of the decision of the appeal hearing will be kept on the appellant’s personnel file.

10. Training

To ensure that managers within Public Health Wales are aware of the appeals policy and procedure, information on the process will be incorporated into the Managing Disciplinary Issues training that is run on an annual basis.

Members of the Human Resources Department are required to provide guidance to managers with the responsibility of issuing disciplinary sanctions, and guidance and advice to members of the appeals panel.

11. Communication to staff

All staff groups need to be made aware of this policy. The policy will be made available on the intranet page once the policy is approved. It will also be distributed via the e-bulletin.

Line Managers should bring the policy to the attention of their staff for information only.

Where an employee has a right of appeal to a warning, sanction or dismissal, they will be communicated this verbally and followed up in writing, with the letter communicating this information sent via ‘recorded delivery’ post, enclosing a copy of the Policy.



12. Monitoring and auditing

The policy lead will monitor and audit this policy to ensure it is complaint with current legislatives, to ensure it is implemented, and ensure that the policy is being adhered to.

13. Review

This policy will be reviewed on 31 April 2013.

Information Governance implications – comments by information governance lead:

This policy does not introduce any additional or special information governance or privacy issues or risks beyond those already inherent in disciplinary procedures. There will need to be clear procedures in place to ensure that copies of Appeals documentation are only retained for the period defined in Section 9, and panel members will need to be reminded not to retain copies of material once the hearing has taken place as this may hold sensitive information about ‘third parties’ as well as about the employee. Panel members will therefore need to be asked to dispose of their papers securely in the knowledge that a formal set is retained for the defined period.

Peter A Boyle26 November 2010.


appeals against formal warnings disciplinary sanctions andor dismissal v0e 081210

Documents

dismissal policy policy

policy summary

relevant trust policy

policy aims

dismissal policy appeals

trust policy reference

hr officer policy lead

submission of appeals